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TM (a protected party by his litigation friend, DM) v Metropolitan Housing Trust Ltd – Permission granted by the Court of Appeal (22 March 2021)

Date: 22/03/2021
Duncan Lewis, Legal News Solicitors, TM (a protected party by his litigation friend, DM) v Metropolitan Housing Trust Ltd – Permission granted by the Court of Appeal

The Appellant suffers from a particularly serious mental disability. He is diagnosed with schizoaffective disorder and treatment-resistant paranoid schizophrenia. He has spent long and frequent periods as an in-patient in mental health hospitals. He lacks capacity to litigate in these proceedings and acts through his litigation friend, his father.

The Appellant is the tenant of the Respondent. The accommodation is supported accommodation owing to the Appellant’s health condition.
The claim was defended on a number of different bases, including a breach of the PSED (s149 Equality Act 2010) and disability discrimination (s15 Equality Act 2010).

During the course of proceedings further medical information had been obtained which outlined the full extent of the Appellant’s condition. The Respondent’s housing officer accepted in his evidence that if this had been available to him before starting possession proceedings that he would not have done so.

At trial the judge found that the PSED had been breached. However, he determined that the breach was not material as it would have made no difference to the outcome and had been remedied during the course of giving evidence in the witness box at trial. As such the breach didn’t provide a defence to possession proceedings. He found that it was proportionate to make a possession order and there were no lesser
measures open to the Respondent.

A possession order was made but enforcement suspended pending the provision of alternative suitable accommodation.

This was appealed to the High Court on the basis that:


  1. The judge had misapplied existing case law by finding that a breach of the PSED that on the Respondent’s own evidence would have impacted upon their decision to pursue possession proceedings was not material.

  2. The decision that making a possession order was proportionate not in breach of s15 EA 2010 and there were no lesser measures short of possession that could have been taken to achieve the same aim was undermined by the fact that the possession order could not be enforced pending the provision of suitable alternative accommodation, itself a lesser measure.


On appeal it was determined that the making of a possession order was proportionate. This was inter alia on the basis that possession will not take effect until such time as suitable alternative accommodation is provided.

The decision that the breach of the PSED had been remedied in the witness box was upheld.

This remains a decision of some concern to housing practitioners. It was established in Forward v Aldwyck housing Group Ltd [2019] EWCA Civ 1334 that a breach of the PSED amounts to a defence to a possession claim if it is highly likely that the decision would have been substantially different absent the breach. Whilst it was found in London and Quadrant Housing Trust v Patrick [2019] EWHC 1263 (QB) that a breach could be remedied retrospectively, its ambit did not extend to the breach being remedied in the witness box at trial. This decision if allowed to stand would allow local authorities such a wide margin of error in complying with the PSED that it is arguably obsolete in possession proceedings, removing a valuable layer of protection for vulnerable people.

Permission to appeal was sought in the Court of Appeal on the basis that:

  • The High Court erred in holding that the R had complied with the PSED in circumstances when the trial judge had found that the R had breached the PSED but remedied that breach whilst giving evidence under cross examination at trial

  • The High Court and trial judge erred in making and upholding the possession order and in so doing misapplied s 31 (2A) Senior Courts Act 1981 in circumstances under which the R had breached the PSED and admitted in evidence that it would have reached a different decision if that breach had not occurred.


By order dated 9 March 2021 the Rt Hon Lady Justice Asplin granted permission to appeal on both grounds. In so doing she stated that:

“Both grounds of appeal have a real prospect of success in light of the recent Court of Appeal decision in Durdana. In the light of that case, there is also a compelling reason as to why this matter should be heard. Furthermore, the issue in this case in relation to the PSED and the way it was addressed in cross examination, raises a point of principle.”

Author Adrian Smith is a solicitor in the housing department at Duncan Lewis. He specialises in matters relating to possession claims, homelessness and unlawful evictions.

Contact Adrian on 02070147395 or at adrians@duncanlewis.com

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